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Monday, November 27, 2006

US Freedom of the Press Rated Low in World Opinion

Glorious Communist Freedom of the Press!(as found in Russia, Cuba, North Korea, and many other nations that found the US to be 53rd in freedom of the press)

In a ludicrous article in the San Francisco Chronicle, William Bennett Turner, a San Francisco lawyer who teaches a course on the First Amendment and the press at UC Berkeley, says: “In a nation that preaches the virtues of democracy, the United States government has consistently eroded the media's ability to report and, by extension, undermines the ideals it professes to uphold.” Mr. Turner then goes on to masterfully not prove his point.

He begins his article on a strange note. citing the period of anarchic press freedom during Glasnost in the Soviet Union, when journalists were free to report anything. He fails to mention that the government and budding Russian mafia at that time were then free to murder the outspoken journalists, a Russian "freedom of the press" tradition that continues today.

Mr. Turner notes: “I used to tell my students on the first day of class that we had the freest speech and press in the world. I can't do that anymore. In recent years American press freedom has eroded.”

Interestingly, Mr. Turner begins his case by giving several contradictions to his main point. He writes: “By virtue of Supreme Court decisions (does this latest one change your mind, Mr. Turner?), the U.S. press remains freer than the press elsewhere in a few respects. He notes “our law provides significantly greater protection for the press against libel suits, especially by government officials.” In Mr. Turner’s free press havens of Europe, libel laws are used by both the governments and individuals to silence critics and commentators both. In France a journalist was tried and convicted of bringing the state into disrepute, even though he proved that France 2 (French public television) had falsely reported the death of Muhammad al-Durrah in September, 2000.

Next, “our law protects the press against almost any attempt by government to impose a ‘prior restraint’ on what can be published.” Certainly the citizens of “free press” Canada can’t say the same. In fact, Captain’s Quarters, perennially one of the most popular blogs in America, also became the most popular in Canada when Captain Ed reported news from a trial of Liberal government corruption in Canada that the Canadian news could not, even though the trial was open to the public.

Finally, Mr. Turner comments “perhaps unique in the world, our law protects the advocacy of dangerous, potentially divisive ideas.” I can only add that in much of the world, the practice of freedom of the press often leads to dead or imprisoned journalists.

So far Mr. Turner has done a great job of proving he was right when he used to tell his class we had the freest speech and press in the world, and is wrong now when he says we don’t.

If we don’t have the freedom of the press we once had, Mr. Turner, what has changed?

According to Mr. Turner, it all started Sept. 11, 2001. “Now that we are in a seemingly permanent "war" on terrorism, the government claims wartime powers that result in restricting press freedom.” For proof of his charge, he cites the increase since 9/11 of documents classified “secret” by the government. However, he offers no comparison to the classification of government documents during World War II, the Korean War, the Viet Nam War, or the one I am personally most familiar with, the Cold War.

I was a Cold War warrior in the Air Force from 1962 to retirement in 1984, and worked in the Security Service as a Russian linguist doing radio intercept from 1962 to 1965. During over twenty one years of service, under three Democrat and three Republican presidents, I wallowed in copious quantities of classified documents, many of which I was personally responsible for protection and safekeeping from disclosure. This, of course, was many years before 9/11, and curiously, was probably during the period Mr. Turner told his classes we had the freest speech and press in the world.

Mr. Turner then voices concern that the Bush administration is aggressively pursuing leakers of classified information. In particular, he thinks it worrisome that the pursuit of the leakers begins with the journalists and news media that received and disseminated the leaked classified information.

It seems very strange to me that someone in the legal profession would think it wrong that the Bush administration is attempting to carry out its Constitutional responsibilities to enforce the laws of the land. Nowhere in the Constitution, or in the laws that have been passed as provided by it, do I find the President has been granted the power to not enforce some of the laws, at the discretion of the profession of journalism.

Is it against the law to make an unauthorized disclosure of classified information? Yes, unless Mr. Turner can prove otherwise to the satisfaction of the Supreme Court, because Congress and American presidents all the way back to George Washington have considered it a violation of law.

Does it make any difference that the unauthorized disclosure is to a journalist rather than anyone else? So far, I have seen nothing in our laws, or in the laws of other nations, that give persons who make unauthorized disclosures of classified information to journalists an “Exempt from Prosecution” card.

Recapping my argument to this point, it is illegal to make an unauthorized disclosure of classified information to anyone. That seems simple enough, doesn’t it?

Then the next issue is, “How do you investigate and find who violated the classified information protection laws?” Logically, it would seem you would start your investigation at the point where you became aware a potential crime was committed. In the case of unauthorized disclosure of classified information, usually that means you go to the news agency that made the disclosure public, and then interview whichever of their employees were involved.

What happens if a journalist will not tell lawful investigators their knowledge of pertinent crime facts? Do you declare that, since the disclosure was to a journalist, no crime was committed, and drop the investigation?

Mr. Turner correctly notes that no such exemption for unauthorized disclosure of classified information to a journalist is or ever was in the Constitution of the United States, although he says that in Sweden the right of access to government documents is enshrined in their constitution. I know Swedes are a wild and crazy bunch, but I doubt even the Swedes just hand over their classified documents to any Muhammad “Swen” Swenson who asks to see them.

Lying by omission, are we Mr. Turner?

Mr. Turner correctly notes that American journalists have never had strong protections against subpoenas, but then curiously states that up until now they hardly ever needed it. I wonder, is he saying that journalists didn’t formerly engage in unlawful disclosures of classified information as much as they do now, or that previous administrations didn’t honor their responsibilities under the law? Since the laws haven’t changed, what’s different?

Curiouser and curiouser, Mr. Turner writes: “So far, the courts have refused to protect subpoenaed reporters no matter how important the information they unearthed or how insignificant the alleged crime.” Mr. Turner, I’m surprised that you, a lawyer, would think that courts could or should provide such protections to reporters. In effect, are you saying that the courts have the right to prejudge an investigation, before it even starts? Should you be reminded that the investigation is of an illegal disclosure of information, and the reporter by refusing to disclose pertinent information, information that only they may know, is impeding a lawful action and shielding a criminal?

I thought the indictment, trial, and sentencing phases were when the importance and significance of violations of law was decided, not in the pre-investigative stage.

Unlike Mr. Turner, I am not a lawyer, so I can only try to logically and with reason get to the heart of legal matters. Apparently Mr. Turner was seduced to rate the US low in freedom of the press based on our standing in world opinion.

As what essentially was the only proof of our loss of freedom of the press, Mr. Turner cited two surveys of world opinion, one by Freedom House, the other by Reporters without Borders, which he admitted were unscientific, but apparently he felt supported his point. Interestingly, the Freedom House survey lumps the United States into the top "Free" ranking, and above most of the nations that Reporters without Borders rank higher.

After admitting the subjectivity of the ratings, Mr. Turner wants to have it both ways, as he notes: "But it is sobering to see the consensus that the United States is no longer anywhere near the top."

Mr. Turner, isn't being ranked 17th of 168 countries considered being "anywhere near the top"?

For those with short memories, I remember the Cold War years, when world opinion as stated by the Iron Curtain “Peoples’ Republics,” African kleptocracies, Middle Eastern plutocracies, and Communist dictatorships routinely condemned the United States as the most despotic and least free nation of the world.

And I’ll bet that they didn’t think much of our freedom of the press then, either.

UPDATE: Pamela at Atlas Shrugs alerts that: "The Supreme Court ruled against The New York Times on Monday, refusing to block the government from reviewing the phone records of two Times reporters in a leak investigation of a terrorism-funding probe."

Apparently the Supreme Court wants a piece of the "erosion of freedom of press" action too. It looks like the Constitution still allows the prosecution of illegal disclosure of information.